In the spirit of Sensei's Node Your Homework, here's an essay from my Political Science class. This was written in response to the prompt "Is avenging crime a proper aim of government?". Most of the ideas presented here are direct responses to questions and situations posed by Glenn Tinder in his book "Political Thinking: The Perennial Questions". I strongly recommend the book as good fodder for honing one's essay writing skills.

In asking this question, we must consider what is the purpose of law. Is the law a means of instituting order or morality upon society, or perhaps both? The primary issue at stake is that morality is by no means an absolute and cannot be arbitrarily decided by the government. As the government enacts laws based upon the opinions of the people or their duly elected representatives, this might be viewed as fair by many. However, this removes utterly the rights of any moral minority. They are subject absolutely to laws which they do not feel are just. This obviously is an unacceptable system. It is impossible and foolhardy to compel a person to follow a moral code that is not their own. This leads to protest and often outright insurrection.

What then, is the purpose of law? While one may acknowledge the right of the individual to decide morality for himself, one must bow to the fact that human human beings live in a society. Humans must be able to interact safely with one another despite their differences. The solution to this is a set of practical laws which allows people to live in harmony. The law must strive to safeguard the common good.

Obviously, once a law has been broken, the law has failed to a certain degree already. What then, becomes the responsibility of the law to both the criminal and the society in which he lives and in which he perpetrated his crime? If the law cannot dictate morality to the people, one must turn to practicality for a course of action. The practical question is how to prevent this crime from occurring again. One can classify criminals according to how suitable they are to return to society. At one end of the spectrum there are those who, upon witnessing the horror of what they have done, repent instantly and will never again commit a crime. Next is the person who, with some time for reflection and some coaching, sees the error of their ways and will never again commit a crime. Then there are those who do not recognize how unsuitable their actions are and must be kept from society for the sake of the common good. These can be divided into two categories: those who will repent one day and those who never will.

Obviously, the criminals who repent and will never commit another crime can, in a practical sense, be let free. Those who are still a danger to society must be held until they no longer are. It is irresponsible to let a criminal return to a society which they may harm again. However, it is equally, if not more, irresponsible to give up all hope of helping the criminal see the light. As a living, breathing human being they have the right to learn from their mistakes. If one just gives up on a person, then we have accomplished nothing. For this reason, capital punishment is impractical and unfair to the person the criminal might become. If a person genuinely reforms and will never again commit a crime, this person is, for all intents and purposes, not the same man who was originally thrown into jail. If looked upon with fresh eyes, this person is no more deserving of punishment than any other. In a practical sense, he is just as innocent as the next man.

A better means of detaining criminals would be to give them as little to do as possible except to dwell on what they had done. Complete sensory deprivation, were it not a form of brutal torture, would be extremely effective. Something akin to it, but less devastating to the psyche would prove far more successful than the present penal system. Many criminals face better conditions in jail than they would normally. If given minimal contact with the outside world and nothing to do but think about what they had done, a good number might genuinely reform. Those who did not would face an appropriate punishment of isolation from the society they had wronged.

In conclusion, an effective system of law is one that protects the citizens subject to it. By incarcerating those who are a danger to society until they are reformed, this is achieved. However, punishing criminals who no longer are criminals at heart serves no practical purpose but to force another person's morality upon people who do not deserve such treatment. If a criminal truly reforms, then there is no reason to incarcerate them and certainly there is no reason to simply execute a person and give up all hope for them. There is always hope for everybody. As a human being they deserve at least that much.

Attempts to analyze punishment in terms of utility and rational purpose generally fail to account for the systems of “Justice” we actually have in place. Criminal justice systems have irrational, quasi-religious functions as well.

Vendetta and the Oresteia

Consider Aeschylus' Oresteia trilogy (Agamemnon, Libation Bearers, Eumenides).

Aeschylus’ story begins with the Greek expedition across the Aegean to war with the city of Troy. Fierce winds blow in the faces of the warriors and the sea boils before them. Poseidon, the god of the sea, will not let the fleet sail until he is propitiated with a human sacrifice. Their king or warlord, Agamemnon, offers his daughter, Iphigenia.

In fact, the curse on the house of Atreus can be traced back into hoary myth, with the tale of King Tantalus killing his son Pelops, cutting him up and serving him as a feast to the Gods. The Gods revive Pelops (with an ivory shoulder provided by Demeter, who had eaten his shoulder before discovering his identity). The resurrected Pelops becomes the ancestor of Agamemnon (with a considerable amount of sibling crime, cannibalism and vengeance in the intervening generations, depicted in cartoon format here:

Agamemnon’s wife, Clytemnestra, enraged by the sacrifice of her daughter, and by Agamemnon’s abandonment for ten years while fighting the Trojan war, takes a lover Aegisthus, and with him plots to murder Agamemnon and seize the throne. She rolls out the proverbial red carpet for Agamemnon and then stabs him to death.

Agamemnon and Clytemnestra’s son, Orestes, guided by Apollo through the Delphic Oracle, returns to Mycenae to avenge his father’s death. Disguised as a messenger announcing his own death, Orestes surprises his mother and her lover and kills them.

The Olympian gods are pleased at this result because Orestes has enforced the sanctity of Clytemnestra’s marriage vows. However, Orestes has violated a more primordial bond than the marriage contract: he has killed his own mother. The Erinyes (Eumenides “Kindly Ones”, or Furies), cthonic Goddesses decended from Gaia or the Fates, but in either event representing more fundamental principles than the Olympian gods. The name, “Kindly Ones” is a euphemism, for they are anything but kindly: their names are Megaera (jealous), Tisiphone (blood avenger), and Alecto (relentless). They track Orestes by the smell of his mother’s blood: "We drive matricides from their homes ... Since a mother's blood leads us, we will pursue our case against this man and we will hunt him down ..." Aeschylus, Eumenides, 210, 230.

The drama culminates with a trial, presided over by Athena. Athena is female, and therefore acceptable to the Furies as a mediator, but also, since she was born of Zeus without a mother, also acceptable to the Olympian patriarchy. Athena decrees that Orestes be spared, so that the cycle of violence must end with him, but the Furies be propitiated with a blood sacrifice.

Application to the Criminal Justice System

In Anglo-America law, criminal proceedings are not brought in the name of the victims or their families. We have entirely separate, “civil” proceedings in which compensation can be sought for the injury to the victim or the victim’s family. They are brought in the name of the sovereign: as in “The Queen v. Orestes” or “United States v. Orestes” or “People v. Orestes”. While proof of a crime is required, the offense is not considered from the standpoint of the victim but rather as breach of the peace, or the conduct of lawful behavior decreed by the state. The nature of the crime is determined solely by statute, in terms of the conduct prescribed by law, and not in terms of the compensation for the suffering of the victim. The crime is in the killing, not the death. Hence the crime is not the result, but the bad act and the guilty mind with which it was committed.

Consider the demands of enraged families: Mark Klaas, father of the victim Polly Klaas, the activist who agitates tirelessly for “three strikes” and other punitive sentencing schemes; the family of Nicole Brown Simpson, screaming for blood in the OJ trial. Clearly the criminal proceedings are not brought on their behalf, nor are they the judges of what constitues fair and satisfactory punishment. They are the Erinyes of today. They are barred from the courtroom, the proceedings are governed by blind Justice, the modern day Athena of the nation-state.

The state does not “avenge” the wrongs suffered by the victim. Punishment is intended to deter and incapacitate, to preserve “the King’s Peace”. To the extent that it appears that “vengeance” is the purpose of a criminal proceeding, consider it the “blood sacrifice” to the Kindly Ones, to end the cycle of violence.

A truckload ofOresteia links:

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